Excerpt: a power of revocation in favour of the settlor contained in a deed of wakf renders the deed void.
JUDGMENT John Beaumont, C.J.
1. This is an appeal from a decision of Mr. Justice Kania, given upon an originating summons, which, raises the question, whether a deed of wakf dated March 9, 1923, is void according to Muhammadan law.
2. The original plaintiff was one Abdul Satar Suloman Haji Ahmed, and the defendants were the Advocate General of Bombay, representing charity, and the trustees of the deed of wakf. Before the summons was heard, it appeared that the original plaintiff had really no interest in the property, and that the person primarily interested in maintaining that the deed of wakf was void was the second defendant. Accordingly the second defendant was made a plaintiff. But his name was loft on the record as a defendant also. That is wrong, and his name must be struck out, as a person cannot bo on both sides of the record at once. The third and fourth defendants are the other trustees of the deed.
3. The deed of wakf, which is Ex. A, is dated March 9, 1923, and is made between Haji Ahmed Oomer and the second plaintiff of the one part and the same two persons and a third person as the trustees of the other part. It recites that the settlors are entitled to certain immoveable property, and that they are desirous of settling the same by way of wakf in manner thereinafter appearing. Then there is an assignment to the trustees, and a direction is given to the trustees to set apart forty per cent, of the income of the trust property, and to pay out of that forty per cent. Government and Municipal taxes, ground rent, and other rates and outgoings, and the balance of the forty per cent, in to be used for constituting a sinking-fund for the purpose of doing heavy repairs or reconstruction of the trust premises. Then Clause 5 directs that the trustees are to stand possessed of the remaining sixty per cent, of the gross rents and income of the trust premises upon the trust there set-out,-those trusts being in effect for Muhammadan charities, and the last paragraph of that clause provides that “the trustees shall have full discretion to apply the said sixty per cent, of the gross rents and income to any of the above-mentioned objects in such order either one after the other or to one or more of them simultaneoulsy as the said trustees may in their absolute discretion think proper.” Then Clause 12 is in these terms :-
Provided always and it is hereby lastly agreed and declared that it shall bo lawful for the said settlor Haji Ahmed Oomer at any time or times hereafter during his lifetime by any deed or deeds revocable or irrevocable or by his last will or any codicil thereto expressly referring to this power wholly or partially to alter or vary the trust powers and provisions herein declared and contained concerning the trust premises hereby settled or the moneys or properties for the time being representing the same or any of them or any part thereof and by the same or any other dead or deeds or will or codicil to appoint and declare any now or other trusts or powers of and concerning the trust promises or any part or parts thereof as he may think fit.
4. In the Court below it was apparently conceded that if Clause 12 of the deed amounted to a general power of revocation, it would invalidate the whole wakf. The learned Judge, however, hold that Clause 12 on its true construction was limited to altering the trusts declared by the deed and declaring new trusts only in favour of other charitable objects, and that it was not a general power of revocation. It appears to me impossible to support the learned Judge’s judgment on that point. The general rule of construction, in cases of this sort, is that the Court must ascertain the intention of the parties from the language they have used, giving to that language its fair and natural meaning, and construing the document as a whole. Having ascertained the intention of the parties in that manner, the Court must apply the law to the intention so ascertained. If the arrangement which the parties intended infringes wholly or in part some provision, of law, then the rights of the parties must be adjusted on that basis. If the words of the deed are ambiguous, the Court may, I think, lean to a construction which produces a legal, arrangement rather than one which is illegal, on the principle that it is better to effectuate than to destroy an intention, which, one may naturally presume, was not intended to transgress the law (see the judgment of Lord Selbourne L.C. in Peark’s v. Moseley (1880) 5 App. Cas. 714. But the Court, in my opinion, is never justified in giving to this language used by the parties a meaning other than that which it naturally bears in order to save the intention from being rendered invalid. If the Court does that, it is really making an arrangement for the parties which they have not made for themselves.
5. Now, in this case it appears to me that the language of Clause 12 is perfectly plain. It is an ordinary power of revocation, taken, I should say, from some book of English precedents. It enables one of the settlors by deed wholly to alter the trust declared by the deed, and by the same deed or any other deed or by will or codicil to declare new trusts concerning the trust premises. From the language of this clause by itself I can see no justification whatever for saying that the new trusts must be trusts of a charitable character. Nor can I see anything in the rest of the deed to justify such a limited construction of Clause 12. On the contrary, Clause 5 shows that where the parties intended to give the trustees a discretion in the application of the property to charity, they know how to express their intention.
6. Mr. Justice Kania based his judgment to a large extent on the decision of Mr. Justice Chandavarkar in the case of Assoobai v. Noorbai (1905) 8 Bom. L.R. 245. In that case that learned Judge had to deal with a deed by way of wakf which contained a general power of revocation in terms quite as wide as the power in the present case; and the learned Judge did in that case construe the power of revocation as being confined only to an alteration of the trusts in favour of other charitable objects. In so doing, I think the learned Judge was wrong, and that ho offended against well-settled canons of construction. In my opinion his judgment cannot be considered as an authority as to the proper method of construing a clause such as we have to deal with in this case.
7. We have, therefore, to consider what is the effect of a deed of wakf containing a general power of revocation in favour of the settlor. The fact that the power in this case is in favour of one settlor is, in my opinion, immaterial, since both the settlors concurred in giving that power. As I have said, in the Court below it seems not to have been disputed that such a clause would render the wakf invalid. But in this Court Mr. Manekshah, on behalf of the Advocate General, has contested that proposition, and has very properly drawn our attention to the fact that there is no authority in support of the proposition which is binding upon this Court, There are, however, views of the text-writers and authorities which, must be considered.
8. Dealing with the modern text-writers, Sir Dinshah Mulla in the 9th Edition of his work on Mahomedan Law, at p. 136, states the proposition very clearly. He says :-
Where at the time of creating a non-testamentary Wakf, the wakf reserves to himself the power of revoking the wakf, the wakf is invalid.
He cites certain authorities the relevant ones of which I will refer to in a moment.
9. Mr Faiz B. Tyabji in the 2nd Edition of his work on Muhammadan Law, at p. 558, seems to treat the question as somewhat doubtful. He queries whether a right of revocation or alteration may be validly reserved in a wakf, and then he discusses the question and the authorities on the point.
10. On the other hand, Mr. Ameer Ali, in the first volume of his book on Mahommedan Law, 4th Ed., at p. 433, after discussing the views of the various of the old text-writers, comes to the conclusion that the right view in such a case is that the wakf is valid but the condition, that is, the power of revocation alone, is void. But he cites no authority in support of that proposition.
11. With regard to the older writers, in Hamilton’s book on the Hedaya, 2nd Edition, at p. 288, the learned author discusses a difference of opinion on this point between Aboo Yoosaf and Mahommed, and finally expresses, as I understand him, his own opinion in those words :-
An appropriation, moreover, is not complete without the will of the appropriator; and as, where he makes a reserve of option, this cannot be ascertained, it follows that the appropriation is void; and being once void, its validity cannot afterwards be restored by the condition ceasing to operate.
I gather, therefore, that his view is that any condition in favour of the settlor would make the whole wakf invalid. The opinion of Baillie, at p. 565, is to the same effect.
12. With regard to the cases there is a dictum of Mr. Justice West in the case of Fatmabibi v. The Advocate General of Bombay (1881) I.L.R. 6 Bom. 42, the passage in question being at p. 51. He says :-
A wakf must be certain as to the property appropriated, unconditional, and not subject to an option.
The expression “option”, I think, is clearly wide enough to cover an option of a settlor to revoke the deed. That dictum is adopted with approval by a majority of the full bench in the Madras High Court in the case of Pathukutti v. Avathalakutti (1889) I.L.R. 13 Mad. 66, F.B. Then there is the decision of Mr. Justice Chandavarkar in Assoobai v. Noorbai (1905) 8 Bom. L.R. 245, to which I have already referred on the question of construction. In that case the learned Judge deals with this precise point. He refers to the case of Fatmabibi v. The Advocate General of Bombay, at p. 51, and to the case of Pathukutti v. Avathalakutti, which I have mentioned. Then he refers to Baillie and to Hamilton’s Hedaya, and then he sums up his conclusion in these words (p. 250) :-
The principle in substance is that the appropriation and dedication in favour of charity must be at the time Such appropriation or dedication is made so complete that it should not be in the power of the donor or settlor to recall over afterwards. It should bo such that no proprietory interest is reserved by the settlor and that the property is effectually and once for all dedicated to charity and constituted charity property leaving no power to the settlor to recall the trust and regain the ownership.
That is the only authority which seems to me to be directly in point, and it is of course not binding upon this Court. But, in my opinion, the principle enunciated by Mr. Justice Chandavarkar is in accordance with such authorities as there are, on this point, and correctly state the law.
13. Dealing with the matter apart from authority, it seems to me that the reservation of a power of revocation in a deed of wakf is inconsistent with the fundamental idea underlying a wakf,-that fundamental idea, as explained by the Privy Council in the case of Abdur Rahim v. Narayan Das Aurora (1922) L.R. 50 I.A. 84, being that the property is treated as vested, not in trustees, but in Almighty God. It is impossible to contemplate property transferred to Almighty Cod subject to a condition enforceable in the temporal Courts for recovering that property for the benefit of the settlor. In my view, therefore, the power of revocation cannot operate, and where you have a gift of property to charity made expressly subject to a condition in favour of the donor, which condition cannot bo given effect to, it seems to me to be more in accordance with the principles of equity and good conscience that the whole gift should bo treated as void, rather than that the gift should be supported and the condition ignored.
14. I think, therefore, that both on authority and on principle we ought to hold that a power of revocation in favour of the settlor contained in a deed of wakf renders the deed void. That being so, we must answer the question put to us by declaring that the deed of wakf dated March 9, 1922, being Ex. A, is void. The parties will have liberty to apply as to any difficulty which may arise in the distribution of the property. Costs of all parties of the appeal as between attorney and client to come out of the trust property. Two counsel on both sides are allowed.
15. I am of the same opinion. Mr. Justice Kania held that Clause 12 of the deed was not a general power of revocation, but was merely a power to alter the trusts by substituting new trusts of a charitable nature, such as the trusts enumerated in Clause 5 of the deed, upon the authority of the decision of Mr. Justice Chandavarkar in Assoobai v. Noorbai (1905) 8 Bom. L.R. 245. In that case the learned Judge had to construe a clause of a deed which is very similar to Clause 12 of the deed which is before us. The words in question there were (p. 246) :-
And it is also hereby declared that I the said Emnabai shall be entitled at any time during my life by any deed or deeds to revoke all or any of the trusts powers and provisions declared and contained by and in these presents concerning the said trusts premises and the accumulation or any part thereof and by the same or any other deed or deeds to appoint and declare any now and other trusts, powers and provisions concerning the premises to which such revocation shall extend.
Mr. Justice Chandavarkar conceded that those words standing by themselves were wide enough to include any secular or charitable trusts; but he went on to express the opinion that (p. 251) “coming, as the words do, after the charitable trusts specified, they must bo interpreted, in my opinion, on the principle of ejusdem generis, to mean trusts for charity”. With groat respect to that learned Judge, I think that he took a wrong view of that clause. The words therein were perfectly general, and were plain, and unambiguous. In my opinion, he was not justified in interpreting them as limited to a power to alter the trusts by substituting therefor trusts ejusdem generis with the other trusts mentioned in the deed, Similarly, in the ease before us, I think that, on the true construction of Clause 12 of the deed, it is a general power of revocation.
16. Upon the second point I respectfully agree with the opinion expressed by the learned Chief Justice that the general power of revocation does affect the validity of the deed, and I do not desire to add anything to his observations.
17. In my opinion the question put to us must be answered in the manner indicated by the learned Chief Justice.